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Orr v. Orr

Questions Never Asked

The arguments took place on 27 November 1978. Lillian could have objected to William's standing to sue. She could have claimed that his suit came too late; after all, he had not complained at the time of the divorce. And she could have argued that since they had both agreed and signed on the dotted line, they were bound by state contract law--so it did not matter whether the alimony laws were constitutional or not. William would still have to pay. However, to the surprise of the justices, she offered none of these arguments. Lillian stood by her original contention that the only issue before the Court was the constitutional one.

Therefore, the Court addressed these arguments for her. First, it granted William standing to sue. Justice Brennan said: "There is no question but that Mr. Orr bears a burden he would not bear if he were female. This is highlighted, although not altered, by transposing it to the sphere of race. There is no doubt that a state law imposing alimony obligations on blacks but not on whites could be challenged by a black who was required to pay. The burden alone is sufficient to establish standing."

Second, the Court found that the "unexcused tardiness" of William's challenge "might well have constituted a procedural default under state law, and if Alabama had refused to hear Mr. Orr's constitutional objection on that ground, we might have been without jurisdiction to hear it here."

The third question was whether the Supreme Court should refuse jurisdiction because Alabama's contract laws might have furnished a valid basis for a lower court decision in favor of Lillian. In response, Brennan quoted Anderson v. Brand (1938): "We cannot refuse jurisdiction because the state court might have based its decision . . . upon an independent and adequate non-federal ground."

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1973 to 1980Orr v. Orr - Significance, Questions Never Asked, A Woman's Place Is . . ., A Divorce Decision Changes The Meaning Of Marriage